Governor Janet Mills is expected not to include money to open the state’s first public defender office, increase staff oversight of defense spending or raise wages for court-appointed attorneys in the next biennium budget, according to records released on Friday, Dec. 18.
A $35.4 million budget proposal by the Maine Commission on Indigent Legal Services, or MCILS, submitted in October outlined the first major investment in public defense since the agency opened in 2010. A meeting agenda released on Friday said MCILS was notified by the state budget office that its initiatives had not made it through the first round of review for the biennium budget.
“The governor continues to believe that adding general fund dollars, during a pandemic-driven shortfall, to a program that is flawed and lacking in accountability will not increase the quality of representation in Maine’s courts, particularly given that General Fund appropriations for MCILS nearly doubled between 2011 and 2018, even as Maine’s criminal court filings and crime rate declined,” said Kelsey Goldsmith, a spokeswoman for the state financial office on behalf of the Mills administration.
Judicial Branch statistics do show the number of criminal cases declining in the past five fiscal years. But 42,000 criminal cases were still filed at the trial level in fiscal year 2020 and MCILS reported its attorneys opening more than half that amount — 27,000 cases — including some juvenile, child protective and mental health cases along with free legal services at arraignment.
Mills, a Democrat, is expected to release a supplemental budget on Jan. 8 for the current fiscal year that ends on June 30, 2021, and a biennium budget that will direct funding to Maine state agencies for the next two years. Her administration said on Friday the budget is “far from finalized.”
Josh Tardy, an attorney and lobbyist appointed by Mills in 2019 to chair the commission that oversees MCILS, said, “I’m disappointed, but I’m not surprised.”
A single request of $2.8 million to cover a gap in existing operational costs at MCILS is likely to be included in the budget, according to a budget update released ahead of a commission meeting scheduled for Monday.
The state budget office has asked the eight-member commission to identify its priorities among the four proposed projects, including a pilot of a trial-level public defender office in Kennebec County, a statewide appellate public defender office, increased staff to perform financial and attorney oversight at the agency’s central office and a pay raise from $60 to $100 an hour for court-appointed attorneys — the first since 2015.
Together the initiatives would increase oversight of attorney behavior and billing, which were criticized by the state’s independent oversight agency in a scathing report released in November and the focus of an investigation into attorney conduct published in October by The Maine Monitor and ProPublica.
Tardy said prioritization is “budget-speak” for reshuffling of funds within the commission’s existing budget. The commissioners could redirect funds to one of the proposed initiatives with MCILS’s own budget. However, it is unlikely to be achievable with its current budget.
“Certainly, we knew it wasn’t going to be an easy obstacle to overcome from a budget standpoint but this is just an early step in a very long budget process,” Tardy said. “There’s a lot to be determined.”
The commission will focus on increasing public confidence in the public defense system while the budget moves through the Legislature between January and June 2021, Tardy said. He did not believe Mills would commit more money to MCILS until she was confident in the improvements.
But he also has not written off a future budget amendment or her commitment to defense.
“I don’t think there’s anybody that understands the needs of public defense in Maine any better than Janet Mills,” Tardy said.
Mills is “committed to ensuring that low-income people in Maine receive high-quality legal services in a fiscally-responsible manner,” said Goldsmith, the financial office spokeswoman.
“Her goal is to improve the work and the accountability of MCILS so that indigent individuals receive the quality of legal representation that is constitutionally required,” she added.
Maine is obligated under the Sixth Amendment of the U.S. Constitution to provide legal representation to poor defendants at every critical stage of their case.
Leadership at the ACLU of Maine has repeatedly raised concern about the lack of training and oversight of attorneys contracted with MCILS and warned it would take legal action against the state if it did not make improvements to the public defense system.
“We hope and expect that MCILS will tell the Governor’s office that its entire budget request is necessary for it to fulfill its mission. The state has a constitutional obligation to ensure that people who are accused of crimes have the assistance of counsel,” said Zach Heiden, chief counsel of the ACLU of Maine.